China IPR Enforcement Roadmap

Issue21 By Harry Yang,[Comprehensive Reports]

In order for IP right holders to safeguard their rights in China, they inevitably need to deal with several law enforcement agencies because China has a unique dual-track system for the enforcement of IP rights, i.e. both the courts of justice and administrative agencies have a say in IP enforcement. Under China's current law, the power of administrative law enforcement belongs to different administrative agencies, which may have some overlapping authority. Hence, when confronted with so many law enforcement agencies, right holders confronting infringement may need a law enforcement roadmap by which they can accurately locate the relevant enforcement agencies for complaints, and thus effectively protect their IP rights.

Court of Law, Procuratorate and Public Security Bureau

If a right holder chooses judicial procedures to solve its infringement problem, there is only one avenue available to him, i.e. bring the suit before a court of law. The Supreme People's Court prescribes a forum level principle of jurisdiction in respect to civil cases involving intellectual property, with intermediate courts as the first instance courts, and a countable number of basic-level courts as supplementary. With respect to administrative cases concerning IPR, the principle of exclusive jurisdiction shall apply. For instance, patent cases of first instance are subject to the intermediate people's courts of the cities where the province-level governments sit, as well as the intermediate courts designated by the Supreme People's Court. Patent administrative disputes of first instance are subject to the jurisdiction of the Beijing No.1 Intermediate People's Court and second instance cases are under the jurisdiction of the Beijing High People's Court. In addition, given China's large territory, IP civil actions also involve territorial jurisdiction. The Civil Procedure Law provides that a lawsuit brought against an infringing act shall be within the jurisdiction of the court of the place where the infringement is committed or where the defendant has his domicile. The place of infringement includes the place where the infringing act is committed or where the consequence of the infringement arises. In joint actions, there may be more than one place of infringement. Taking trademark infringement cases as an example, the place of infringement includes the place where the infringement is committed, the infringing commodities are stored and the seizure is made.

An IP criminal case shall generally be removed to the public security agency upon the report of the right holder or by other administrative agencies. The public security agency shall, after concluding its investigation of the case and determining that criminal liability should be investigated, remove the case to the procuratorate to initiate public prosecution. Finally, the people's court will, after the hearing, render a criminal judgment if a criminal liability is proved with sufficient evidence.

IP litigation is generally special,complicated and difficult for evidence collection, which may sometimes lead to lengthy trials. Therefore, IP rights holders are more willing to choose administrative procedures, which are swifter, to crack down on infringers. Moreover, the registration of IP rights is under the management of different state administrative agencies. It is hence natural that IP rights holders have more dealings with administrative enforcement agencies.

SIPO and Patent Office

The State Intellectual Property Office (SIPO) Patent Office files and examines patent applications, and grants patent rights in accordance with law; the SIPO Patent Reexamination Board is responsible for examining applications for reexamination, reviewing the rejection of preliminary examinations, reviewing the rejection of substantive examinations, and examining applications for declaring a patent right as null and void. SIPO also established the Administrative Law-enforcement Committee for Layout Designs (Topographies) of Integrated Circuits for handling disputes regarding the exclusive right of layout designs, and decides through mediation the compensation for infringement upon the exclusive right of layout designs.

SIPO and the local intellectual property offices throughout the country deal with patent infringement disputes and investigate the acts of utilizing fake patents and imitating patents. Most local intellectual property offices are located in large and medium-sized cities, and only a handful of them are located in cities at the county level; also there is limited staff in local intellectual property offices. According to the Changchun Intellectual Property Office website, this Office has only six members, and only two of them, the head of the department and one staff member, in the Coordination Department of Patent Enforcement. The limited manpower results in weak law enforcement by the intellectual property office. According to the website of SIPO, from Jan. to Dec. of 2006, the whole system nationwide filed 1,227 and closed 952 patent infringement dispute cases, while only 33 of them involved unauthorized use of others' patents.

IP right holders need to be aware of the fact that law enforcement departments differ from each other in organization within the local intellectual property offices across China. For instance, the IP Coordination Department of the Beijing Intellectual Property Office (BJIPO) is responsible for coordinating with relevant departments in investigating and handling major IP infringement cases and BJIPO Patent Enforcement Department is in charge of stipulating the layout and plan for the city's patent enforcement, dealing with patent disputes, investigating and combating acts of producing fake patented products. The Coordination and Management Department of Changchun Intellectual Property Office handles patent disputes and investigates and deals with acts of making fake patented products. The Department of Laws, Regulations and Policies under Xiamen Intellectual Property Office deals with patent disputes and infringing acts, and also investigates and deals with acts of making fake patented products. It is worth noting that the institutional setup in Shenzhen Intellectual Property Office (SZIPO) is relatively unique. Apart from the Law Department which is responsible for patent enforcement and the Patent Department for patent implementation, it has also established a Copyright Department which is responsible for copyright administration and the investigation of and delivering punishment for copyright violation cases, which may be an attempt to unify IP enforcement.

AIC and Trademark Office

The China Trademark Office (CTMO) under the State Administration for Industry and Commerce (SAIC) governs trademark registration and administration nationwide. The Trademark Review and Adjudication Board (TRAB) of SAIC handles trademark disputes. The administrations for industry and commerce (AICs) at all levels across the country are responsible for IP-related law enforcement over acts of monopoly, unfair competition and trademark infringement. They also protect the exclusive right to use a registered trademark, and regulate comprehensive protection to enterprise names and the packages, decorations, business secrets and trademarks of known and famous commodities. Among these, acts of infringement involving business secrets shall be determined and dealt with by AICs at or above the county level.

AICs throughout the country have law enforcement teams with large staffs. For example, Beijing AIC, with more than 6,000 staff members, has stronger IP enforcement compared with other AICs. Local AICs throughout the country have established many departments with different functions and responsibilities for different matters. Further, the internal organization of the local AICs also differs slightly. Before filing complaints, right holders need to know the corresponding department. Normally, IP enforcement work is undertaken by AICs' in-house departments, such as the departments for market management, for fair trading, and for trademark supervision and administration, i.e., in Beijing AIC, the Department of Trademark Supervision and Management is responsible for investigating and handling cases concerning trademark infringement and trademark counterfeiting and the Department of Economic Inspection is responsible for investigating and handling such acts as monopolization in market trading and unfair competition. In Dalian Municipal AIC, the Department for Fair Trading is in charge of providing guidance for anti-unfair competition and anti-monopoly work, while the Department of Trademark Advertisement Supervision and Management is responsible for investigating and handling trademark infringement cases and the Department of Economic Inspection is responsible for participating in, organizing and coordinating the elimination of pornography and illegal publications and cracking down on the manufacture or sale of counterfeit or fake commodities. In Ningbo Municipal AIC, the Department of Economic Inspection is responsible for organizing investigations and handling monopolizations in the market and unfair competition cases and the Department of Trademark Supervision and Management is responsible for investigating and handling trademark counterfeiting and trademark infringements and illegal acts in trademark use.

The strong law enforcement capabilities of AIC sometimes may be used by right holders for other purposes. For example, law enforcement involving copyright infringement of computer software is not within the scope of AIC authorities. However, a right holder can apply to an AIC office for the investigation and detention of computer software on the grounds that the source code of the computer software involves business secrets. Actually this is a process of collecting evidence. During the period when the software is being detained, the right holder can bring a lawsuit before a court of law for computer software copyright infringement. When this occurs, the product detained by AIC can be produced as evidence to the court of law.

Cultural Bureau, Press and Publication Bureau and Copyright Bureau
The General Press and Publication Administration (GPPA) (the National Copyright Administration of China (NCAC)) is in charge of copyright registration and management work. The Copyright Protection Center of China (CPCC), directly under GPPA, is responsible for the handling of copyright registration for ordinary works and software works. The local press and publication bureaus (copyright bureaus) throughout the country are responsible for handling copyright (software excluded) registration work under their governance. GPPA (NCAC)) assumes the responsibility for investigating, handling or organizing the investigation of copyright infringement cases with major ramifications, as well as those involving foreign parties.

As a matter of fact, the local press and publication bureaus, and copyright and cultural bureaus in various locations belong to one department. For example, Xuzhou Municipal Cultural Bureau, Municipal Press and Publication Bureau, and Municipal Copyright Bureau are one agency. There are also some places where the department for copyright management is established under the Cultural Bureau, for example, the Department of Press and Publication Copyright Management is under the Dalian Municipal Cultural Bureau.

Law enforcement by cultural bureaus may also involve IP; for example, the crack down on illegal publications in the “eliminating pornography and illegal publications” action. Further, during the karaoke royalty charge process implemented earlier this year, the Ministry of Culture (MOC) established a KTV charge collection system with the status as administrator of karaoke parlors, thus triggering a dispute with the NCAC over the administration for the karaoke royalty charges.


The agency for the examination and approval of rights for new varieties of agricultural plants is the Ministry of Agriculture (MOA). The Office of Protection of New Varieties of Agricultural Plants under the MOA is responsible for the receipt and examination of applications for rights in new varieties of agricultural plants. The examination and approval agency for rights of new varieties of forest plants is the State Forestry Administration (SFA, former Ministry of Forestry). The Office of Protection of New Varieties of Forest Plants under the SFA is responsible for the receipt and examination of applications for rights in new varieties of forest plants.

Where a granted plant variety is counterfeited, the administrative departments of agriculture and forestry of the people's governments at or above the county level shall enjoin the counterfeiting act, confiscate the illegal gains and propagation material of the plant variety, and concurrently impose a fine.

In cases of infringement of variety rights, the variety right owner or other interested parties may request the administrative departments of agriculture and forestry to handle it in accordance with their respective functions and powers. In handling infringement cases of variety rights accordingly, the administrative departments of agriculture and forestry may order the infringer to stop the infringing act, confiscate the illegal gains, and concurrently impose a fine.

The administrative departments of agriculture and forestry may, according to their respective functions and powers, and on the basis of the principle of free will of the parties, mediate the compensation for damages caused by the infringement.


IPRs under the protection of China's Customs include those proprietary trademark rights, patent rights, copyrights, as well as copyright-related rights in connection with the importation or exportation of cargo. The customs' procedures for IPR protection can be divided into four stages: recordation, detention, investigation and disposition.

Right holders should, if requesting the customs to enforce protection for their IPR involving the import and export of cargo, record their IP rights with the General Administration of Customs (GAC). The right holder, who has recorded his rights with GAC, may apply for protective measures to the port customs if he discovers that the suspected infringing cargo is about to be imported or exported. The customs authority shall, upon the application of the right holder, detain the suspected cargo. The parties can submit ownership and infringement disputes to the competent IPR department to handle, or have them investigated by the customs authority, or bring a lawsuit before the people's court. Upon the determination that the suspected cargo is infringing cargo by any of the three aforementioned departments, the customs shall confiscate and destroy the cargo in question, or remove the infringing mark in accordance with law. As to the consignee and consignor who know or should have known that the import and export of cargo infringed others' IP rights, the customs may impose a fine on them below the value of the cargo involved.


The Administration of Quality, Supervision, Inspection and Quarantine (AQSIQ) is responsible for formulating national standards, industry standards and local standards, and placing the product standards set by enterprises on record. AQSIQ is also a competent authority for investigating and handling counterfeit and inferior commodities, and for investigating the manufacture and sale of counterfeit and inferior commodities. The local AQSIQs throughout the country focus their work on the crack down on the manufacture of counterfeit and inferior products, which involves overlapping of power with the AICs enforcement combating counterfeit trademarks. However, at present some infringing products with counterfeit trademarks are not inferior in quality. The law enforcement mechanism for such products is still not yet decided.

With the advent of the computer era, electronic intellectual property protection has become another priority. The Ministry of Information Industry (MII) and the National Copyright Administration of China (NCAC) jointly released the Measures for the Administrative Protection of Internet Copyrights. With respect to the Internet service providers who fail to fulfill their duty to record after the receipt of notice of the copyright owner, MII or the local telecommunications administrative authorities may issue a warning to the suspected infringer and concurrently impose a fine below RMB 30,000. The China Internet Network Information Center (CNNIC), founded upon approval of MII, is a body for the administration of domain name registration and for the operation of DNS root servers. Disputes regarding domain names must be filed and resolved by institutions authorized by CNNIC.

Actually, there exist certain contradictions among the agencies for resolving domain name disputes. Among the arbitration institutions designated by CNNIC, the people's court has jurisdiction over the adjudication of cases in which domain names have suspectedly infringed trademark rights. AICs also have the authority to govern cases in which domain names conflict with trademarks. In addition, a specialized arbitration procedure designed for domain names cannot counteract ordinary arbitration procedures, especially legal proceedings. As to whether specialized arbitration procedures designed for domain names can counteract administrative investigation procedures of AICs, at present there is no specific provision in the law. Moreover, special arbitration procedures designed for domain names do not address the issue of compensation.

Complaint Service Centers for IPR Protection

This year, the Ministry of Commerce (MOC) established 50 complaint service centers nationwide for the protection of IPRs. Perhaps this is a new attempt to solve the problem of decentralization of IP enforcement. The centers are open to the society in filing reports and complaints about infringement upon IP rights, such as trademark rights, patent rights and copyrights, and provide right holders and the general public with consulting services concerning IPR protection. Meanwhile, the centers also conduct preliminary examinations on the reports and complaints filed, removes those that conform to set requirements to relevant administrative enforcement agencies, public security agencies and the judiciary pursuant to law, and gives feedback to the reporters and complainants about the remove and handling.

After the establishment of the centers, right holders may no longer have headaches choosing among the law enforcement agencies. However, the IP enforcement problems with the various agencies have not been completely solved. Faced with the various law enforcement agencies and the overlapping law enforcement authority, the Chinese government, by initiating special campaigns for joint law enforcement, has united the relevant IPR enforcement agencies at all levels, from the central to the local, to combat such infringement conducts as counterfeiting and piracy. For instance, the 100 Day Anti-Piracy Action of 2006 involved many agencies, like the National Working Group Office for Eliminating Pornography and Illegal Publications, the Ministry of Culture, the General Press and Publication Administration, the National Copyright Administration of China, the State Administration for Industry and Commerce, the Ministry of Public Security), the Ministry of Construction and the Ministry of Supervision. These special law enforcement actions have indeed achieved a certain result. But to right holders, this does not solve the problem of weak law enforcement for individual cases and the poor coordination among various departments. To solve these problems, further integration of IP law enforcement agencies is perhaps needed. 
                                                                                   (Translated by Zhang Meichang)

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